In the April 13, 2017 edition of the Los Angeles Daily Journal, Robert McKennon and Stephanie Talavera of the McKennon Law Group PC published an article entitled “Ruling Limits Who Can Bring Suit Under ERISA,” summarizing a new Ninth Circuit case which limits the circumstances in which health care providers can bring suit under ERISA. In the article, Mr. McKennon and Ms. Talavera explain that the new ruling limits the ability of healthcare providers to bring suit under ERISA by narrowing the term “beneficiaries” under ERISA to exclude health care providers, eliminating their right to sue under ERISA in most, but not all, situations. DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., 2017 DJDAR 2813 (Mar. 22, 2017). However, the article also explains that even if health care providers are not able to avail themselves of ERISA remedies, they may well find solace in non-ERISA state law remedies.
The article is posted below with the permission of the Los Angeles Daily Journal.
Ruling limits who can bring suit under ERISA
By Robert J. McKennon and Stephanie L. Talavera
Courts continue to grapple with who can sue under the Employment Retirement Income Security Act of 1974. ERISA provides procedural and fiduciary protections that govern employer-sponsored insurance plans, but persons who want to sue under ERISA first must qualify as a plan “participant” or “beneficiary.” See ERISA Section 502(a), 29 U.S.C. Section 1132. Last month, the 9th U.S. Circuit Court of Appeals narrowed the term “beneficiaries” under ERISA to exclude health care providers, eliminating their right to sue under ERISA in most, but not all, situations. DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., 2017 DJDAR 2813 (Mar. 22, 2017).
In DB Healthcare, the 9th Circuit decided two similar cases together, as both addressed the same central issue: whether a health care provider (the doctor or hospital that provides health care to a covered patient) designated to receive direct payment from a health plan administrator for medical services is authorized to sue under ERISA. The 9th Circuit answered “no,” because the health care providers did not have direct authority as “beneficiaries” under ERISA and did not have derivative authority to sue as assignees.
The parties in DB Healthcare were engaged in a standard health care reimbursement dispute. The plaintiffs included 12 medical facilities in Arizona, 10 nurse practitioner employees and a medical facility in Bakersfield (the providers). The defendants, the administrators for the relevant ERISA-governed employee benefit plans, included Blue Cross Blue Shield of Arizona Inc. and Anthem Blue Cross Life and Health Insurance Company (the ERISA plan administrators).
The providers performed blood tests and other services for the individual patients enrolled in an employer-sponsored health insurance plan. Initially, the ERISA plan administrators reimbursed the providers for $237,000 and $295,912.87, but later changed course and requested repayment. After running post-payment reviews, the ERISA plan administrators decided the providers were not entitled to the reimbursements. Blue Cross found the tests were investigational, and therefore were not covered by the plan, while Anthem determined the women’s health center had used faulty practices to bill for the tests and therefore was not entitled to payment. The providers refused to return the money and a legal battle ensued.
The providers filed lawsuits against the ERISA plan administrators, asserting numerous claims under ERISA, but generally alleging that the ERISA plan administrators violated ERISA’s protections when they unilaterally determined that the blood tests and other services performed were not reimbursable.
As to Blue Cross, the providers sought injunctive relief regarding Blue Cross’ refusal to credential nurse-practitioners and its threat to cancel provider agreements if they did not repay them, alleging that Blue Cross violated ERISA’s prohibition against retaliation for the exercise of rights guaranteed by employee benefit plans. See 29 U.S.C. Section 1140. The providers also sought a declaratory judgment that Blue Cross’ recoupment efforts violated the ERISA claims procedure, 29 U.S.C. Section 1133, and the ERISA claims procedure regulation, 29 C.F.R. Section 2560.503-1, which provide procedural protections for ERISA claimants.
As to Anthem, the providers asserted four claims for relief, three under ERISA. Under ERISA, the providers sought declaratory judgment and an injunction that prohibited Anthem’s attempts to recoup payments as violating ERISA’s claims procedure, 29 U.S.C. Section 1133, and the ERISA claims procedure regulation, 29 C.F.R. Section 2560.503-1. The providers also sought monetary damages for past recoupments, and requested declaratory and injunctive relief regarding Anthem’s alleged violation of fiduciary duty to plan beneficiaries and participants. The district courts in each case found the providers were not authorized to sue under ERISA’s civil enforcement provisions.
The 9th Circuit affirmed the district court judgments dismissing the actions. As the court noted, ERISA outlines who can sue to vindicate a claim as a “beneficiary” under Section 502(a). ERISA defines “beneficiary” as “a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.” 29 U.S.C. Section 1002(8) (emphasis added). However, as the 9th Circuit noted in DB Healthcare, ERISA does little to directly define “benefit.” But, within the larger context of ERISA, the courts have determined that “benefit” refers to the specific advantage provided to a covered employee because of his or her employment, for a purpose connected to alleviating various life contingencies. See DB Healthcare at 2815-16 (citing Spinedex Physical Therapy USA Inc. v. United Healthcare of Arizona, Inc., 770 F.3d 1282, 1289 (9th Cir. 2014); Rojas v. Cigna Health & Life Ins. Co., 793 F.3d 253, 257 (2d Cir. 2015)). The 9th Circuit reasoned that reimbursement for health care services is not a “benefit” within the meaning of the ERISA. Thus, consistent with several other circuits, the 9th Circuit found that the providers were not “beneficiaries” within the meaning of ERISA’s enforcement provisions and could not bring claims directly under ERISA.
The 9th Circuit further held that the providers could not bring their ERISA claims under derivative authority, through assignments by individual employee beneficiaries. In determining that the providers were not entitled to reimbursement, the 9th Circuit reviewed several contracts that governed the relationships between the parties, as well as the underlying assignments.
As to Blue Cross, the governing plan document had a non-assignment clause that read as follows: “The benefits contained in this plan, and any right to reimbursement or payment arising out of such benefits, are not assignable or transferable, in whole or in part, in any manner or to any extent, to any person or entity.” The court found that this non-assignment clause prevailed over any purported assignments.
With respect to Anthem, the 9th Circuit found a lack of derivative authority for a slightly different reason. Although the plan had no prohibition on the assignment of the right to benefits, the dispute was as to recoupment of payment and therefore did not fall within the scope of the assignment. Thus, although the patients signed forms to the health care provider that stated “I Hereby Authorize My Insurance Benefits to Be Paid Directly to the Physician,” those forms did not actually give the health care provider the right to relief.
While DB Healthcare limits the possibilities for reimbursement for some health care providers, it does not entirely foreclose the possibility of recovery. As the 9th Circuit noted, there is no reason that the providers in DB Healthcare could not have brought their claims in state court, as ERISA would not have preempted the claims. See Blue Cross of Cal. v. Anesthesia Care Ass’n, 187 F.3d 1045, 1050-52 (9th Cir. 1999).
Moreover, if medical providers cannot sue under ERISA because of an anti-assignment clause in the ERISA plan document, it is possible that they may still bring an action against a claims or plan administrator for breach of oral contract, equitable or promissory estoppel and other theories for recovery under state law if the claims or plan administrator pre-authorized coverage of the claim directly with the medical provider. See Morris B. Silver M.D., Inc., v. Int’l Longshore & Warehouse Union Pac. Maritime Ass’n Welfare Plan, 2 Cal. App. 5th 793 (2016) (holding that ERISA did not preempt provider’s claims for breach of oral contract, quantum meruit and promissory estoppel). Therefore, even if health care providers are not able to avail themselves of ERISA remedies, they may well find solace in non-ERISA state law remedies.
Robert J. McKennon is a shareholder of McKennon Law Group PC in its Newport Beach office. His practice specializes in representing policyholders in life, health and disability insurance, insurance bad faith, ERISA and unfair business practices litigation. He can be reached at (949) 387-9595 or [email protected]. His firm’s California Insurance Litigation Blog can be found at www.californiainsurancelitigation.com.
Stephanie L. Talavera is an associate at McKennon Law Group PC.